This chapter describes the traditional Indian ‘three-gender’ model represented in ancient Indian literature and outlines the legal, social, and religious discrimination suffered by third gender people. Furthermore, it explains how the traditional South Asian concept of three sexes and genders differs from the Western binary model. It outlines the situation of third gender people, Hijras, in contemporary India, and the efforts of the judiciary to confer rights on them, to improve their social and economic situation, and to grant them recognition.
India, in contrast to Western cultures, acknowledged a ‘third gender’, tŗitīyā prakŗti in Sanskrit, since the Vedic era (approx. 1000 BCE) and defined third gender persons as na vā eşa strī na pumān, ‘being neither man nor woman’ (Śatapathabrāhmaņa), thereby constructing a ternary sex/gender system. Although medical treatises like Carakasańhitā and Suśrutasańhitā defined the third sex/gender as biological determined, third gender persons were considered inferior to the first gender, man, and the second gender, woman. They suffered discrimination, were expelled from their families, and were excluded from social life and cultural participation. Ancient law books like the Manusmrŗti declared them to be impure and inauspicious, which resulted in their exclusion from rituals, rites, ceremonies, and cults. The conviction was and is that Hijŗas suffer(ed) a righteous fate as result of their bad karman, acquired by sinful acts carried out in former lives. Marginalised, they formed a community, centuries if not millennia ago, lived together in separate houses in family-like structures and created their own culture, formulated a code of conduct, a codex of rules, and specific laws. Thereby they created a ‘third space’, a niche of survival in a rejecting if not hostile environment. British colonial Law in India discriminated against the Hijŗas as well, labelled them as ‘criminals’ like ‘thugs and thieves’, and persecuted them. In 2009 India introduced a legal ‘third gender option’ for persons who consider themselves being neither male nor female; by granting a legal third identity option to her Hijŗas, India returned to her ancient ‘three-sex/gender-model’, which was abrogated by British Law in India. In 2014 the Supreme Court of India defined the Hijŗa community as OBC, ‘other backward class’, granting Hijŗas benefits of affirmative action, privileges, and quota. Today’s Hijŗas still suffer from marginalisation or even ostracism. Society treats them as highly ambivalent, fears, pities, shuns, ridicules them, avoids social intercourse and reacts in often hostile ways. Hijŗas are considered potentially dangerous and are dreaded because of their assumed magic power to curse and to maledict. This chapter outlines the long history and culture of India’s third gender community and the gender-based discrimination it had and has to suffer. A study of ancient Indian literature proves the longevity of structural as well as individual discrimination and violence against Hijŗas. The data were collected by analysing Sanskrit sources and by interviews conducted with Hijŗas.